Nothing is more fundamental to representative democracy than the unfettered ability of elected officials to speak candidly with their constituents. When we elect representatives, we expect that they will keep us informed, listen to our views, and act in our interest.
This rule no longer applies in California.
Acting at the behest of California’s powerful public employee unions, the Legislature has legally restricted the speech of thousands of local elected officials like me. A 2018 law prohibits public employers in California, including elected city council and school board members, from making statements that would “deter or discourage” public employees from joining or remaining in their union.
The law was passed in anticipation of the Supreme Court’s ruling striking down compulsory union dues in 2018. The idea was to prevent public employers from starting a stampede of union resignations by informing employees that they could leave the union without further obligation to pay the $1,000-plus annual dues.
After the law was signed, the independent and nonpartisan California School Board Association quickly advised more than a thousand member school boards to avoid public comments about the Supreme Court’s decision lest they trigger an unfair labor practice challenge. Heeding the CSBA’s advice, counsel to the Los Alamitos Unified School District school board, on which I served, directed that we make no statement despite the obvious importance of a Supreme Court decision to the district’s employees.
But the law is vaguely written and covers any speech that might deter or discourage union membership. In 2018, for example, the Los Angeles Unified Teachers Association filed several charges of unfair labor practice against one of the largest public charter school organizations in California over statements made by school officials informing teachers that the union was opposed to charter schools.
Increasingly, unions have taken official positions on a range of contested political issues such as sanctuary city laws and homeless and immigration policies. An official who alerts employees to such controversial union positions could trigger an unfair labor practice charge. After all, a public official who informs employees about their union’s position on sanctuary city laws, no matter what side the union takes, is likely to deter or discourage union membership by someone.
The law is as unconstitutional as it is unworkable. The law only restricts speech that paints the union in an unfavorable light. Speech that is favorable to the unions is left untouched. The First Amendment couldn’t be clearer in prohibiting viewpoint restrictions, especially as applies to public officials who are elected to have and to express a particular viewpoint.
Moreover, restricting speech based on a vague standard of what might “deter or discourage” an individual from union membership chills all speech because officials can’t tell what speech is covered and what speech isn’t. As a local elected official, part of my job is to meet with the public in both formal meetings and informal encounters at the grocery store or in a coffee shop. I can’t check with the board attorney every time I talk to a constituent on the street. The First Amendment is clear — restrictions on speech must be clear so individuals can know in advance what is permitted.
The ongoing problems created by a prohibition on speech that “deters or discourages” union membership have led me and six other California public officials to join together with the California Policy Center and the Center for Individual Rights to challenge the law in federal court. This clear case of legislative overreach chills speech by public officials on a wide variety of issues of great importance to California voters and should be struck down.
Jeffrey Barke, MD, currently serves as a member of the Rossmoor Community Service District in California. From 2006 to 2018, he was an elected member of the Los Alamitos Unified School District Board of Education.
